1

Filed 8/29/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

PARAIC O’DONOGHUE et al.,

Petitioners, A137996

v. (San Francisco City & County

Super. Ct. No. CGC09494591)

THE SUPERIOR COURT OF THE COUNTY

OF SAN FRANCISCO,

Respondent,

PERFORMING ARTS, LLC,

Real Party in Interest.

______________________________________/

In a commercial real estate transaction, Paraic O‟Donoghue, Tony Manning, Enda 

G. Quigley, Sean Murphy, Daniel Walsh, and Christopher Flood (collectively defendants) 

each signed a separate personal continuing guaranty in favor of a lender. The guaranty 

agreements (agreements) contained a provision authorizing dispute resolution through 

judicial reference. (Code Civ. Proc., § 638.)1 In its action to enforce the agreements, 

Performing Arts, LLC (plaintiff) moved for appointment of a referee pursuant to the 

judicial reference provision (provision or reference provision) in the agreements; the trial 

court granted the motion and appointed a referee.

 

1

 Unless otherwise noted, all further statutory references are to the Code of Civil 

Procedure. 
2

Defendants seek writ relief from the order granting plaintiff‟s motion to compel 

judicial reference. They argue: (1) the reference provision does not waive their right to a 

jury trial because they did not have “actual notice of, and did not engage in meaningful 

reflection before agreeing to, the purported waiver;” (2) the reference provision is 

unconscionable, and therefore unenforceable; (3) plaintiff waived its right to reference; 

and (4) the court abused its discretion by granting the reference motion because reference 

will result in a duplication of effort and will create a likelihood “of conflicting rulings on 

a common issue of law or fact.” (Tarrant Bell Property, LLC v. Superior Court (2011) 

51 Cal.4th 538, 542 (Tarrant Bell).) 

Drawing on cases analyzing contractual arbitration provisions authorized under 

section 1280 et. seq, we conclude plaintiff did not waive its right to judicial reference. 

We reject defendants‟ remaining arguments and accordingly deny the petition for writ of 

mandate/prohibition. 

FACTUAL AND PROCEDURAL BACKGROUND

This litigation concerns the development of a multi-unit condominium project at 

973 Market Street in San Francisco (the property). Plaintiff is a limited liability company 

formed by Joseph Cassidy. Cassidy is plaintiff‟s sole member; he is also the sole 

principal of Centrix Builders, a construction company. Defendants are members or 

principals of members of 973 Market Associates, LLC (Market Associates). All 

defendants except Christopher Flood live in Ireland. 

In August 2007, Market Associates obtained a $20 million construction loan from 

United Commercial Bank (UCB) to develop the property. The loan was documented 

with a promissory note and secured by a deed of trust recorded against the property. 

UCB required each defendant to execute an 11-page agreement containing a personal 

continuing guaranty. 

Each agreement contained the following clause:

“5.11 Judicial Reference. It is the desire and intention of the parties to agree upon 

a mechanism and procedure under which any controversy, breach or dispute arising out 

of this Guaranty will be resolved in a prompt and expeditious manner. Accordingly, any 

controversy, breach or dispute arising out of this Guaranty and all loan documents 
3

executed by Borrower, or relating to the interpretation of any term or provision of such 

documents, shall be heard by a single referee by consensual general reference pursuant to 

the provision of the California Code of Civil Procedure, Sections 638 et. seq. The parties 

shall agree upon a single referee who shall then try all issues, whether of fact or law, and 

report a statement of decision which either party may file with the clerk or judge and 

have judgment entered thereon. If the parties are unable to agree upon a referee within 

ten (10) days of a written request to do so by any party, then any party may thereafter 

seek to have a referee appointed pursuant to the Code of Civil Procedure Sections 638 

and 640. The parties agree that the referee shall have the power to decide all issues of 

fact and law and report a statement of decision hereon, and to issue all legal and equitable 

relief appropriate under the circumstances before him or her. The parties shall promptly 

and diligently cooperate with one another and the referee, and shall perform such acts as 

may be necessary to obtain prompt and expeditious resolution of the dispute or 

controversy in accordance with the terms hereof. The cost of such a judicial reference 

proceeding shall be borne equally by the parties to the dispute.” 

Defendants initialed each page of their respective agreement and signed directly 

beneath section 5.11. 

By April 2009, defendants defaulted on the loan. In June 2009, UCB assigned the 

promissory note to plaintiff, who later acquired the property in a trustee‟s sale. 

The Litigation

In 2009, plaintiff sued defendants for breach of the guaranty, seeking 

approximately $14 million, plus interest.2 Plaintiff served Flood and Manning in 2009 

and 2010; they appeared in 2010. In April and June 2010, plaintiff filed case 

management statements requesting a jury trial and estimating a five-day jury trial.3 In 

2011, Manning, Market Associates and others sued the real estate agent who represented 

Market Associates in the purchase and sale of the property (San Francisco Superior 

Court, case No. CGC11508323). In July 2012, and over plaintiff‟s objection, the court 

 

2

Plaintiff also sued Michael Murrary. He is not a party to this writ proceeding.

3

 Nearly two years later, in a January 2012 case management statement, plaintiff 

indicated it would “[S]eek an appointment of a referee under . . . Section 640, should 

defendants not agree to one under . . . Section 638. In the [agreements] signed by the 

defendants, they expressly agree to trial by a referee, and thus are not entitled to a jury 

trial.” Plaintiff claims it included this same language in other 2012 case management 

statements, but these case management statements are not part of the record. 
4

consolidated that case with the present action. The remaining defendants — Quigley, 

Murphy, O‟Donoghue, and Walsh — filed answers at various times in 2012; Walsh 

appeared last and filed an answer in October 2012. In their answers, defendants asserted 

various affirmative defenses, including unclean hands, estoppel and the illegality and 

unenforceability of the agreements. 

In 2012, defendants and Market Associates cross-complained against Cassidy, 

Centrix Builders, and others. The cross-complaints alleged claims for, among other 

things, fraud, breach of fiduciary duty, and interference with prospective economic 

advantage. As relevant here, defendants claimed Cassidy wrongfully gained confidential 

and propriety information from them about the loan and the property and used it to 

purchase the note from UCB for a below-market rate. 

Discovery

From September 2010 to August 2012, plaintiff served defendants with form and 

special interrogatories, requests for admission, and requests for production of documents. 

Plaintiff‟s requests for production to Manning sought 80 categories of documents, 

including documents related to the loan and the property. In response, defendants 

produced approximately 25,000 pages of documents. In 2012, O‟Donoghue served 

plaintiff with special interrogatories, requests for admission, and requests for production 

of documents. Plaintiff‟s responses to the requests for production were deficient; the 

court granted O‟Donoghue‟s motion to compel and ordered plaintiff to provide 

documents by January 2013. In late December 2012, plaintiff responded to 

O‟Donoghue‟s special interrogatories and requests for admission. 

The Motion for Appointment of a Referee 

In early December 2012, plaintiff moved for appointment of a referee pursuant to 

section 638. Plaintiff argued: (1) the agreements were legally enforceable; (2) removing 

“this matter from the busy court calendar and alleviating the attendant fiscal costs to the 

Court” would promote the public interest; and (3) the cross-complaints and consolidated 

action had “no factual or legal relevance to [its] complaint.” Cassidy — plaintiff‟s sole 
5

member — submitted a declaration in support of the motion attaching the agreements 

signed by defendants. 

In a declaration submitted in support of the motion, plaintiff‟s counsel claimed 

serving O‟Donoghue, Quigley, Murphy, and Walsh was difficult because these 

defendants “were located and Ireland and . . . had to be served by means of the Hague 

Convention” and because they evaded service. Counsel characterized plaintiff‟s attempts 

to serve these defendants as “diligent” and noted the “difficulties . . . in effectuating 

service in Ireland.” Counsel‟s declaration attached a May 2010 affidavit of service from 

an Irish solicitor averring he tried to serve Quigley three times on unspecified dates “but 

failed to do so” because Quigley‟s residence was surrounded by a gate and no one 

answered the door when he rang the doorbell. 

Defendants raised four arguments in opposition to the reference motion. First, 

they argued they did not knowingly and voluntarily waive their constitutional right to a 

jury trial because the reference provision did not “implicate[ ] a waiver of one‟s 

constitutional right to a jury trial.” Second, they urged the court to decline to enforce the 

reference provision under Tarrant Bell, supra, 51 Cal.4th 538 because allowing a judicial 

referee to hear “the personal guaranty claims” would duplicate effort, increase costs, and 

create a risk of inconsistent findings without “diminishing any aspect of the case load 

before [the trial] Court.” As counsel explained, plaintiff‟s right to recover under the 

agreements was “inextricably linked to the propriety of the transfer of the [promissory] 

Note from UCB” to Cassidy and involved Cassidy‟s “wrongful conduct leading to the 

transfer, which is at the heart of Defendants‟ cross-claims against . . . Cassidy and 

Centrix. . . .” 

Third, defendants contended plaintiff waived its right to seek a judicial referee by 

delaying service of process on defendants “by nearly three years” and by waiting “over 

three years before seeking the appointment of a judicial referee.” They also claimed the 

case would not be ready for trial any sooner with a judicial referee because plaintiff had 

“stalled in responding to discovery and steadfastly refused to produce documents for six 

months,” which necessitated an order compelling plaintiff to produce documents. 
6

Finally, defendants argued the agreements were unenforceable adhesion contracts 

containing unconscionable reference provisions. They claimed the agreements were 

procedurally unconscionable because: (1) they were presented in a “take-it-or-leave-it 

manner, accompanied by the threat that no loan would be issued . . . unless the guarantor 

signed the document as presented[;]” and (2) they did not expect the agreements to 

operate to waive their jury trial rights. According to defendants, the reference provision 

was substantively unconscionable because it deprived them of their constitutional right to 

a jury trial and because it contained “one-sided provisions” demanded by UCB that, 

“unbeknownst to [defendants], engaged in unsound banking practices that could 

jeopardize the security underlying the guaranties, misconduct sufficient to warrant 

criminal and quasi-criminal charges against UCB employees.” 

Each defendant offered a declaration averring: (1) the agreements were presented 

in a “take-it-or-leave-it manner” without an opportunity for negotiation; (2) defendants 

did not receive any consideration “in exchange for UCB‟s desire that the [agreements] 

contain the [ ] Reference provision[;]” (3) defendants were not provided with any loanrelated documents when they signed the agreements; (4) before they signed the 

agreements, no one explained what a “„judicial referee‟ entailed” or told them the 

reference provision would waive their rights to a jury trial; and (5) defendants did not 

agree to waive their right to a jury trial in any dispute arising from the agreement. Flood 

further averred he was not represented by an attorney when he signed the agreement and 

that a UCB representative pressured him to sign it “or else no Construction Loan would 

be issued.” He further stated it would be “financially impossible for [him] to pay for a 

judicial referee.” 

Defense counsel submitted a declaration describing the circumstances surrounding 

Cassidy‟s purchase of the note for $3.5 million and attaching an appraisal valuing the 

property at $8.5 million. On information and belief, defense counsel asserted that when 

defendants defaulted on the loan, UCB refused to negotiate with them or with other 

prospective purchasers — some of whom were offering $5 million for the note —

because UCB was secretly negotiating with Cassidy. Counsel‟s declaration attached 
7

various documents pertaining to the FDIC‟s seizure of UCB in November 2009 for, 

among other thing, allowing “illegal „friendly short sales‟ conducted by UCB in 2009.” 

The declaration suggested one of these short sales involved Cassidy. Finally, counsel 

averred plaintiff had “stalled in responding to discovery and steadfastly refused to 

produce documents. Plaintiff delayed producing documents in response to [a document 

request] served . . . in July 2012, ultimately necessitating an Order Compelling Plaintiff 

to Produce Documents filed on December 18, 2012.” 

In reply, plaintiff argued the judicial reference provisions were enforceable under 

California law and “clearly and unambiguously” informed defendants “that all 

controversies would be resolved by a single referee.” Plaintiff further claimed it did not 

waive its right to seek judicial reference because it diligently attempted to serve the 

Ireland defendants under the Hague convention and moved for judicial reference shortly 

after the final defendant was served. Finally, plaintiff contended the agreements and 

reference provisions were not unconscionable. 

Following a hearing, the court granted plaintiff‟s motion for an order appointing a 

referee. Shortly thereafter, plaintiff‟s counsel declined to meet and confer about 

plaintiff‟s responses to O‟Donoghue‟s special interrogatories and requests for admission, 

claiming defendants‟ challenge was “if not moot, in abeyance pending appointment of a 

referee. Any dispute over discovery . . . must await appointment of a referee and a 

determination by the referee of the scope of permissible discovery[.]” Plaintiff‟s counsel 

also advised defense counsel it would seek to “limit the scope of discovery to the narrow 

issues at hand, namely the defendants‟ obligations under the [agreements] and 

[plaintiff‟s] damages under the defaulted construction loan” after a referee was appointed. 

The court denied defendants‟ reconsideration motion and appointed a referee. 

This petition followed. We stayed the order granting the reference motion and issued an 

order to show cause why the relief requested in the petition should not be granted.4 

 

4

 We grant defendants‟ unopposed motions to augment the record and/or take 

judicial notice of various documents in the superior court file. (Evid. Code, § 452, subd. 

(d); Cal. Rules of Court, rules 8.155(a)(1)(A), 8.486(b)(1)(C).) We decline to take 
8

DISCUSSION

“Judicial reference involves sending a pending trial court action to a referee for 

hearing, determination and a report back to the court.” (Trend Homes, Inc. v. Superior

Court (2005) 131 Cal.App.4th 950, 955 (Trend Homes), disapproved on other grounds in 

Tarrant Bell, supra, 51 Cal.4th 538.) “A general reference directs the referee to try all 

issues in the action. The hearing is conducted under the rules of evidence applicable to 

judicial proceedings. In a general reference, the referee prepares a statement of decision 

that stands as the decision of the court and is reviewable as if the court had rendered it. 

The primary effect of such a reference is to require trial by a referee and not by a court or 

jury. [Citation.]” (Treo @ Kettner Homeowners Assn. v. Superior Court (2008) 166 

Cal.App.4th 1055, 1061 (Treo).)

Section 638 “authoriz[es] courts to transfer a dispute to a referee” pursuant to a 

written agreement between the parties. (Grafton Partners v. Superior Court (2005) 36 

Cal.4th 944, 960-961 (Grafton).) Pursuant to section 638, “[A] referee may be appointed 

. . . upon the motion of a party to a written contract . . . that provides that any controversy 

arising therefrom shall be heard by a referee if the court finds a reference agreement 

exists between the parties: [¶] (a) To hear and determine any or all of the issues in an 

action or proceeding, whether of fact or of law, and to report a statement of decision. [¶] 

(b) To ascertain a fact necessary to enable the court to determine an action or 

proceeding.”

 

judicial notice of the transcript of an April 3, 2013 hearing because it is not “relevant to a 

material issue” (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 

422, fn. 2) and because plaintiff did not file a motion for judicial notice. (Cal. Rules of 

Court, rule 8.252(a)(1) [“[t]o obtain judicial notice by a reviewing court . . . a party must 

serve and file a separate motion with a proposed order”].)
9

I.

The Reference Provision Waives Defendants’ 

Right to a Jury Trial

Defendants contend the reference provision does not waive their right to a jury 

trial because they did not have “actual notice of, and did not engage in meaningful 

reflection before agreeing to, the purported waiver.” The crux of defendants‟ claim is 

paragraph 5.11 cannot — and does not — waive their right to a jury trial because it does 

not contain the words jury, jury trial, or waiver and, as a result, they did not know they 

were waiving their rights to a jury trial when they executed the agreements. 

Defendants urge us to establish a rule requiring predispute reference agreements to 

contain explicit language waiving the right to a jury trial. We decline to do so. Section 

638 does not require the reference agreement to contain a jury waiver. As the court in 

Woodside Homes of California, Inc. v. Superior Court (2006) 142 Cal.App.4th 99 

(Woodside II) observed, “[a] statute permitting agreement for a reference unambiguously 

results in a waiver of „jury trial‟ without the need to use those words. Such a reference 

(like arbitration) entails dispensing with trial in the judicial forum, including jury trial.” 

(Id. at p. 104; see also Pinnacle Museum Tower Assn. v. Pinnacle Market Development 

(US), LLC (2012) 55 Cal.4th 223, 245 (Pinnacle); [section 638 “allows appointment of a 

referee (and hence waiver of a jury trial)”].) 

Two courts have enforced reference provisions that did not mention the words 

jury, waiver, or trial. (See Greenbriar Homes Communities, Inc. v. Superior Court 

(2004) 117 Cal.App.4th 337, 334, disapproved on another point in Tarrant Bell, supra,

51 Cal.4th 538; Woodside II, supra, 142 Cal.App.4th at p. 101.) Of course, some 

reference clauses do contain such language, but the fact that some reference clauses 

contain “waiver of jury trial” language is not dispositive. (See, e.g., Woodside Homes of 

Cal. v. Superior Court (2003) 107 Cal.App.4th 723, 729 (Woodside I) [“By initialing 

below, the parties acknowledge that they have read and understand the foregoing and 

accept that they are waiving their right to a jury trial‟”]; Treo, supra, 166 Cal.App.4th at 

p. 1061 [clause entitled, “WAIVER OF JURY TRIAL”].) 
10

The California Supreme Court has concluded an otherwise enforceable agreement 

to arbitrate need not contain an express waiver of the right to jury trial.5 (Madden v. 

Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, fn. omitted (Madden).) In Madden, 

the plaintiff argued the arbitration provision failed because it did “not expressly waive the 

parties‟ constitutional right to a jury trial.” The Madden court rejected this argument, 

explaining, “to predicate the legality of a consensual arbitration agreement upon the 

parties‟ express waiver of jury trial would be as artificial as it would be disastrous” 

because “[w]hen parties agree to submit their disputes to arbitration they select a forum 

that is alternative to, and independent of, the judicial — a forum in which, as they well 

know, disputes are not resolved by juries. Hence there are literally thousands of 

commercial and labor contracts that provide for arbitration but do not contain express 

waivers of jury trial. Courts have regularly enforced such agreements. . . .” (Id. at pp. 

713-714.) The Madden court declined to “fetter” the arbitration institution with 

“artificial requirements” that an arbitration “provision itself must explicitly waive rights 

to jury trial.” (Id. at pp. 714-715.) 

Our high court recently reaffirmed this principle and “declin[ed] to read additional 

unwritten procedural requirements, such as actual notice and meaningful reflection, into 

the arbitration statute.” (Pinnacle, supra, 55 Cal.4th at p. 245, fn. omitted; Ruiz v. 

Podolsky (2010) 50 Cal.4th 838, 853 [citing Madden with approval and noting arbitration 

agreements need not contain an explicit jury trial waiver].) We reach the same 

conclusion here. We hold it would be anomalous to require such an express waiver in a 

predispute reference agreement, and we decline to read into section 638 the requirement 

that a reference agreement explicitly waive rights to a jury trial. (See Badie v. Bank of 

America (1998) 67 Cal.App.4th 779, 804 (Badie) [effective jury trial waiver “particularly 

in a nonadhesive contract, need not expressly state, „I waive my right to a jury trial‟”].) 

An agreement to arbitrate must, however, “clearly and unambiguously show that 

the party has agreed to resolve disputes in a forum other than the judicial one, which is 

 

5

 As we explain infra, cases interpreting arbitration agreements are instructive 

here.
11

the only forum in which disputes are resolved by juries.” (Badie, supra, 67 Cal.App.4th 

at p. 804.) Paragraph 5.11 satisfies that test. It contains the heading “Judicial Reference” 

and advises that all disputes “shall be heard by a single referee by consensual general 

reference pursuant to the provision of the California Code of Civil Procedure, Sections 

638 et. seq.” and that the referee “shall then try all issues, whether of fact or law, and 

report a statement of decision which either party may file with the clerk or judge and 

have judgment entered thereon.” Paragraph 5.11 further states “[t]he parties agree that 

the referee shall have the power to decide all issues of fact and law and report a statement 

of decision hereon, and to issue all legal and equitable relief appropriate under the 

circumstances before him or her.” This language is sufficient to show the parties here 

have “agreed to resolve disputes in a forum other than the judicial one, which is the only 

forum in which disputes are resolved by juries.” (Badie, at p. 804.) 

Treo, supra, 166 Cal.App.4th 1055 does not assist defendants. Treo held equitable 

servitudes created by a covenants, conditions, and restrictions (CC & R‟s) did not 

constitute a “contract” within the meaning of section 638. (Id. at pp. 1066, 1067.) The 

Treo court‟s conclusion that CC & R‟s are not a written contract pursuant to section 638 

has no application here. We reject defendants‟ claim that paragraph 5.11 does not waive 

their right to a jury trial because it does not contain language explicit language regarding 

such waiver. 

II.

The Reference Provision is not Unconscionable

Next, defendants argue the reference provision is unenforceable because it is 

procedurally and substantively unconscionable. “Unconscionability consists of both 

procedural and substantive elements. The procedural element addresses the 

circumstances of contract negotiation and formation, focusing on oppression or surprise 

due to unequal bargaining power. [Citations.] Substantive unconscionability pertains to 

the fairness of an agreement‟s actual terms and to assessments of whether they are overly 

harsh or one-sided. [Citations.] A contract term is not substantively unconscionable 
12

when it merely gives one side a greater benefit; rather, the term must be „so one-sided as 

to “shock the conscience.”‟ [Citation.]” (Pinnacle, supra, 55 Cal.4th at p. 246.)

“The party resisting arbitration bears the burden of proving unconscionability. 

[Citations.] Both procedural unconscionability and substantive unconscionability must 

be shown, but „they need not be present in the same degree‟ and are evaluated on „“a 

sliding scale.”‟ [Citation.] „[T]he more substantively oppressive the contract term, the 

less evidence of procedural unconscionability is required to come to the conclusion that 

the term is unenforceable, and vice versa.‟ [Citation.]” (Pinnacle, supra, 55 Cal.4th at p. 

247.) “Unconscionability is ultimately a question of law, which we review de novo when 

no meaningful factual disputes exist as to the evidence.” (Chin v. Advanced Fresh 

Concepts Franchise Corp. (2011) 194 Cal.App.4th 704, 708.)

The reference provision reflects a low degree — if any — of procedural 

unconscionability. As stated above, “procedural unconscionability requires oppression or 

surprise. “„“Oppression occurs where a contract involves lack of negotiation and 

meaningful choice, surprise where the allegedly unconscionable provision is hidden 

within a prolix printed form.”‟” [Citation.]” (Pinnacle, supra, 55 Cal.4th at p. 247.) 

Claiming there was oppression, defendants point to the declarations they offered in 

opposition to the reference motion, where they averred they: (1) were presented with the 

agreements in a “take-it-or-leave-it manner;” (2) felt they had no option but to sign the 

agreements to obtain the loan; and (3) believed the terms of the agreements were not 

negotiable. While this may be true, it does not carry the day for defendants because the 

“adhesive aspect” of a contract “is not dispositive” on the issue of unconscionability. 

(Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 704 (Serpa); 

see also Pinnacle, supra, 55 Cal.4th at p. 248, fn. 13.) 

“Even if we do assume an imbalance in bargaining power, and that [UCB], as the 

stronger party, presumably prepared the [agreements] with an eye to its own advantage, 

and even if we also assume that [UCB] would not have countenanced the striking of the . 

. . reference provisions, [defendants] have nevertheless only shown a low level of 

procedural unconscionability because, as we . . . [discuss below], the elements of surprise 
13

or . . . misrepresentation . . . [are] not present.” (Woodside I, supra, 107 Cal.App.4th at p. 

730.)

Defendants‟ claim of surprise is unavailing in light of Greenbriar, where the Third 

District Court of Appeal analyzed an identical reference provision and concluded there 

was “no element of surprise.” (Greenbriar, supra, 117 Cal.App.4th at p. 345, 

disapproved on another point in Tarrant Bell, supra, 51 Cal.4th 538.) The Greenbriar

court determined the judicial reference provision at issue there was “written clearly in the 

same sized font as the rest of the agreement, and is easily understood. The provision was 

not buried in the agreement, but in fact appeared at a location where the purchaser was 

almost certain to see it—immediately above where the purchaser would sign the 

agreement.” (Greenbriar, supra, 117 Cal.App.4th at p. 345, disapproved on another 

point in Tarrant Bell, supra, 51 Cal.4th 538.) The same is true here. The reference 

provision “was not obtained by a „stealthy device‟ such as the burial of the provision near 

the end of 70 pages of text.” (Woodside I, supra, 107 Cal.App.4th at p. 734.) The 

reference provision was placed in a conspicuous location at the end of a relatively short 

contract.6 

Nor was UCB — as defendants suggest — required to explain the reference 

provision to defendants. The reference provision clearly states “that in the event of a 

civil action involving a dispute arising out of the guaranty, the action will be heard by a 

judicial reference.” It cites the pertinent Code of Civil Procedure section governing 

judicial reference, notes that “only one referee will be appointed[,]” and what explains 

what “occurs if the parties cannot agree on the referee.” Finally, the reference provision 

states the referee will have the power to decide all issues in the action, to report a 

statement of decision, and to issue all legal and equitable relief as appropriate. (Trend 

Homes, supra, 131 Cal.App.4th at p. 960, disapproved on another ground in Tarrant Bell, 

 

6

 This is not a situation like the one in Pardee Construction Co. v. Superior Court

(2002) 100 Cal.App.4th 1081 (Pardee), where the appellate court concluded a judicial 

reference provision was procedurally unconscionable because it was “buried” in a form 

contract, was “physically difficult to read,” suffered from a possibly misleading caption, 

and was silent on referee fees. (See Greenbriar, supra, 117 Cal.App.4th at p. 346.) 
14

supra, 51 Cal.4th 538.) There is no evidence in the record that defendants “lacked 

education, experience, or sophistication necessary to understand the [guaranties][.]” (Id.

at p. 959.) To the contrary, the evidence suggests defendants had significant experience 

in real estate transactions, an extensive real estate portfolio, and a substantial net worth. 

For example, defendant O‟Donoghue owned a 50 percent interest in seven Bay Area 

properties and had a 2007 net worth of over $3 million. Defendants Quigley, Murphy, 

Walsh, and Manning owned a limited partnership with a net worth of over $22 million. 

Given the low degree of procedural unconscionability, defendants are required to 

show a high degree of substantive unconscionability to render the reference provision 

unenforceable. (Serpa, supra, 215 Cal.App.4th at p. 704.) They cannot. The reference 

provision is not substantively unconscionable. The “terms are not so one-sided as to 

„shock the conscience,‟ nor are they harsh or oppressive.” The provision does “not limit 

the amount or type of relief [defendants can] obtain. By means of judicial reference, the 

provision attempted to ensure the parties would have their rights enforced and arguments 

resolved in as efficient and fair a manner available to them, consistent with the rules of 

procedure and evidence that apply to a trial. Even the referee‟s fees were to be shared 

equally.” (Greenbriar, supra, 117 Cal.App.4th at p. 345, disapproved on another point in 

Tarrant Bell, supra, 51 Cal.4th 538 .) 

With the exception of defendant Flood, none of the defendants made any attempt 

to establish “the probable additional expenses of a judicial reference, if any, would be 

impossible or unreasonably difficult for them to pay[,]” nor did they offer “any evidence 

that the decision to agree to judicial reference was not economically sound from their 

point of view.” (Woodside I, supra, 107 Cal.App.4th at pp. 733-734, fn. omitted.) While 

it may be true, defendants‟ claim that they will “suffer undue expense and inconvenience 

associated with travel from Ireland as the reference proceeding and the trial progress at 

different times” is unsupported by a citation to the record. 

Like other courts before us, we reject defendants‟ claim that the reference 

provision was substantively unconscionable because defendants did not receive 

“bargained for consideration in return” for the inclusion of paragraph 5.11 in the 
15

agreements. Defendants “did get something in addition for their jury waiver—

[plaintiff‟s] matching waiver.” (Woodside I, supra, 107 Cal.App.4th at p. 734.) There is 

nothing in the record suggesting “a truly neutral decision maker chosen under the 

[agreements] will not return a fair decision, or that, if the decision is in favor of 

[defendants], the award will not represent complete and reasonable compensation for 

their damages.” (Id. at p. 735.) In addition, judicial reference “provides economies both 

of time and expense.” (Id. at pp. 732-733; see also Treo, supra, 166 Cal.App.4th at p. 

1066 [noting 1982 amendment to section 638 allowing “parties by written contract . . . to 

agree that any controversy arising therefrom be heard by reference . . . was an attempt to 

lessen judicial delays that were at the time a serious problem”].) 

The parties‟ “waiver of their right to a jury trial does not render [the reference 

provision] substantively unconscionable.” (Trend Homes, supra, 131 Cal.App.4th at p. 

963.) When “parties agree to judicial reference, as opposed to arbitration, they retain 

nearly all of their procedural and constitutional rights, since the rules of evidence apply to 

the proceeding, which is conducted like a trial, and the parties retain appellate rights. The 

only right the parties agree to give up is the right to a jury trial.” (Id. at p. 964.) We 

conclude the reference provision is not unconscionable.

III.

Under the Circumstances of this Case, Defendants Have

Not Established Plaintiff Waived Its Right

to Judicial Reference

Defendants‟ third claim is plaintiff “waived any right to a reference.” They have 

not cited, and our research has not disclosed, any case applying waiver in the context of 

judicial reference. In the absence of such authority, the parties urge us to apply cases 

regarding waiver of a contractual right to arbitration. 

The Legislature has enacted a comprehensive statutory scheme “authorizing 

predispute arbitration agreements” in section 1280 et seq. (Grafton, supra, 36 Cal.4th at 

p. 964.) Section 1281.2 — part of this statutory scheme — requires a court to enforce an 

agreement to arbitrate unless certain conditions have been met, including where “[t]he 

right to compel arbitration has been waived by the petitioner[.]” (§ 1281.2, subd. (a).) 
16

There are differences between arbitration and judicial reference, and section 1281.2 does 

not expressly apply to judicial reference. Arbitration cases, however, are “informative” 

here. (See Trend Homes, supra, 131 Cal.App.4th at p. 961 [noting there was “no reason 

not to apply” California Supreme Court authority on unconscionability of an arbitration 

agreement “in the context of judicial reference”], disapproved on another point in Tarrant 

Bell, supra, 51 Cal.4th 538; Woodside I, supra, 107 Cal.App.4th at p. 727 [review of 

arbitration statutes was “justified in evaluating the enforceability” of judicial reference 

provisions].) Moreover — and apart from any statutory authority — a party may waive 

its right to judicial reference. Like other contractual rights, the right to judicial reference 

may be waived. (See Chase v. Blue Cross of California (1996) 42 Cal.App.4th 1142, 

1151; Cinel v. Barna (2012) 206 Cal.App.4th 1383, 1389 [“[c]ontractual rights are 

subject to waiver, and waiver may be express or implied . . .”].) We therefore look to 

authority concerning waiver of arbitration to determine whether plaintiff waived its right 

to judicial reference.

“Generally, the determination of waiver is a question of fact, and the trial court‟s 

finding, if supported by sufficient evidence, is binding on the appellate court. 

[Citations.]” (Brown v. Superior Court (2013) 216 Cal.App.4th 1302, 1313 (Brown).) 

Defendants urge us to apply an “independent standard of review” because “the facts are 

undisputed and [because] only one inference may reasonably be drawn, the issue is one 

of law[.]‟” [Citation.]” (Ibid.) We decline to apply a de novo standard of review 

because the inferences to be drawn from the evidence on waiver are very much in 

dispute. Where, as here, the facts are disputed, “[o]ur function is to determine whether 

the trial court‟s finding of no waiver is supported by substantial evidence.” (Keating v. 

Superior Court (1982) 31 Cal.3d 584, 608, overruled on other grounds in Southland 

Corp. v. Keating (1984) 465 U.S. 1.) “We infer all necessary findings supported by 

substantial evidence [citations] and „construe any reasonable inference in the manner 

most favorable to the judgment, resolving all ambiguities to support an affirmance[.]‟ 

[Citation.]” (Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 443 

(Lewis).) 
17

“„There is no single test for waiver of the right to compel arbitration[.]‟” (Augusta 

v. Keehn & Associates (2011) 193 Cal.App.4th 331, 337 (Augusta), quoting Berman v. 

Health Net (2000) 80 Cal.App.4th 1359, 1363-1364 (Berman).) Our high court, however, 

has articulated six factors a trial court should consider to determine whether a party has 

waived its right to arbitrate: “„“(1) whether the party‟s actions are inconsistent with the 

right to arbitrate; (2) whether „the litigation machinery has been substantially invoked‟ 

and the parties „were well into preparation of a lawsuit‟ before the party notified the 

opposing party of an intent to arbitrate; (3) whether a party either requested arbitration 

enforcement close to the trial date or delayed for a long period before seeking a stay; (4) 

whether a defendant seeking arbitration filed a counterclaim without asking for a stay of 

the proceedings; (5) „whether important intervening steps [e.g., taking advantage of 

judicial discovery procedures not available in arbitration] had taken place‟; and (6) 

whether the delay „affected, misled, or prejudiced‟ the opposing party.” [Citations.]‟” 

(St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196 (St. 

Agnes).) 

Though some courts apply a more limited three-factor test, “„the party who seeks 

to establish waiver must show that some prejudice has resulted from the other party‟s 

delay in seeking arbitration.‟” (Berman, supra, 80 Cal.App.4th at p. 1364, quoting Davis 

v. Continental Airlines, Inc. (1977) 59 Cal.App.4th 205, 212 [applying a three-factor 

test].) In addition, just as public policy favors arbitration, public policy should favor 

judicial reference. In a statutory judicial reference, parties have the advantage of a

decision maker of the parties‟ own choosing, who will schedule reliable hearing and trial 

dates with flexibility to accommodate competing scheduling issues. (See Kough, 

Judicial References (Aug. 2013) California Lawyer, p. 17; see also Woodside I, supra,

107 Cal.App.4th at pp. 732-733 [judicial reference “provides economies both of time and 

expense”].) The parties retain the procedural rights of a civil trial court, including the 

right to appeal. (§ 645.) Parties may agree to a determination of all or only some of the 

issues in an action, “whether of fact or of law,” (§ 638, subd. (a)) and a referee may be 

appointed to “ascertain a fact necessary to enable the court to determine an action or 
18

proceeding.” (§ 638, subd. (b).) It follows that a party‟s argument that judicial reference 

has been waived should be subject to the same “close judicial scrutiny” as waiver of 

arbitration and the “party seeking to establish a waiver bears a heavy burden of proof.” 

(St. Agnes, supra, 31 Cal.4th at p. 1195.) Applying these principles here, we conclude 

plaintiff has not waived its right to judicial reference because defendants have not 

demonstrated prejudice on the record before us. 

Defendants contend plaintiff delayed seeking judicial reference and exhibited 

litigation conduct inconsistent with an intent to proceed before a judicial referee. 

(Augusta, supra, 193 Cal.App.4th at p. 339.) They are correct. These support a finding 

of waiver. Plaintiff waited three years after filing the complaint, two-and-a-half years 

after the first defendant appeared, and approximately six months after defendants crosscomplained to move for judicial reference. In addition, plaintiff requested a jury trial in 

two 2010 case management statements7and obtained discovery from defendants before 

moving for reference (See Kaneko Ford Design v. Citipark, Inc. (1988) 202 Cal.App.3d 

1220, 1228-1229.) 

Two other factors, however, favor plaintiff or do not apply. The “„litigation 

machinery‟” had not been “„substantially invoked[,]‟” nor were the parties “„well into 

preparation of a lawsuit‟” before plaintiff notified defendants of its intent to seek 

reference. (St. Agnes, supra, 31 Cal.4th at p. 1196.) Courts have concluded a party 

invoked the court‟s litigation machinery where the party moved for summary judgment, 

“participated in a mandatory settlement conference, and allowed the case to proceed to 

the brink of trial” (Law Offices of Dixon R. Howell v. Valley (2005) 129 Cal.App.4th 

1076, 1099) or where the parties filed a motion for class certification and a motion to 

dismiss (Quevedo v. Macy’s, Inc. (C.D. Cal. 2011) 798 F.Supp.2d 1122, 1131.) While 

 

7

 Nothing prevented plaintiff from advising the court in 2010 or 2011 — when 

two defendants had been served — that it intended to move for reference once all 

defendants had been served and appeared. Instead of informing the court about the 

reference provision in the agreements, plaintiff demanded a jury trial in 2010 and waited 

until 2012 — after it had propounded extensive discovery and after defendants crosscomplained — to advise the court of its intention to seek the appointment of a referee. 
19

some discovery has occurred, plaintiff has not substantially invoked the litigation 

machinery. Nor did plaintiff file a counterclaim without seeking a stay. (St. Agnes, 

supra, 31 Cal.4th at p. 1196.)

According to defendants, plaintiff‟s delay in seeking reference compels a finding 

of waiver. We disagree. We cannot conclude the delay was unreasonable under the 

circumstances present here, particularly given the difficulty plaintiff had in serving 

certain defendants in Ireland. The cases upon which defendants rely to support their 

argument that plaintiff unreasonably delayed seeking to compel reference are inapposite. 

In the cases cited by defendants, there were additional reasons for finding prejudice in 

addition to delay. (See, e.g., Sobremonte v. Superior Court (1998) 61 Cal.App.4th 980, 

992-997 [during 10-month delay, defendant participated in hearings and status 

conferences, filed demurrers, engaged in expansive discovery, and forced the opposing 

party to spend over 200 hours preparing for trial by waiting until one month before trial 

to compel arbitration]; Augusta, supra, 193 Cal.App.4th at p. 340 [during six-and-halfmonth delay, moving party conducted discovery, litigated discovery motions, and filed a 

demurrer].) 

Notwithstanding plaintiff‟s use of discovery procedures and its delay in seeking 

judicial reference, we conclude plaintiff has not waived its right to reference because 

defendants have not established prejudice. Courts “„will not find prejudice where the 

party opposing arbitration shows only that it incurred court costs and legal expenses.‟ 

[Citation.] [Courts] assess prejudice in light of California‟s strong public policy favoring 

arbitration. [Citation.] „Prejudice typically is found only where the petitioning party‟s 

conduct has substantially undermined this important public policy or substantially 

impaired the other side‟s ability to take advantage of the benefits and efficiencies of 

arbitration.‟ [Citation.] Prejudice may be found where the petitioning party used the 

judicial process to gain information it could not have gained in arbitration, waited until 

the eve of trial to seek arbitration, or delayed so long that evidence was lost. [Citation.]” 

(Brown, supra, 216 Cal.App.4th at p. 1316.)
20

Here, plaintiff did not wait until the eve of trial to seek reference and there is no 

indication in the record plaintiff delayed so long that evidence was lost. Defendants 

claim they were prejudiced because plaintiff obtained extensive discovery, refused to 

provide meaningful responses to their discovery, and then expressed an intent to limit the 

scope of discovery before the referee. The test for prejudice is whether plaintiff used 

court discovery processes to gain information about defendants‟ case which plaintiff 

could not have gained in judicial reference. (Berman, supra, 80 Cal.App.4th at p. 1367.) 

In other words, courts have found prejudice where a party “availed itself of discovery 

mechanisms . . . not available in arbitration.” (Hoover v. American Income Life Ins. Co. 

(2012) 206 Cal.App.4th 1193, 1205.) Here, defendants have the same right to discovery 

before a judicial referee as they do in court. (Trend Homes, supra, 131 Cal.App.4th at p. 

963.) That plaintiff may, at some point in the future, seek to limit the scope of discovery 

before the referee is not dispositive where there is no indication the referee would be 

willing to limit discovery. Defendants have not demonstrated plaintiff “used the judicial 

process to gain information [plaintiff] could not have gained” in judicial reference, 

particularly where the parties may avail themselves of all the judicial remedies in 

superior court and on appeal. (See Brown, supra, 216 Cal.App.4th at p. 1316.) 

On the record before us, we cannot conclude the evidence compels a finding of 

prejudice and, as a result, we must affirm the trial court‟s ruling regarding waiver. 

(Lewis, supra, 205 Cal.App.4th at p. 453.)

III.

Granting the Reference Motion Was Not an Abuse 

of Discretion under Tarrant Bell

Defendants‟ final argument is the court abused its discretion by granting the 

reference motion because ordering reference would cause duplicative parallel 

proceedings, create a risk of inconsistent rulings, and would not promote judicial 

economy. Defendants rely on Tarrant Bell, where the California Supreme Court held “a 

trial court has discretion to refuse to enforce a predispute agreement providing that, in the 

event of dispute, a referee may hear and decide certain contested issues” (Tarrant Bell, 
21

supra, 51 Cal.4th at p. 540) and determined the trial court “acted well within its 

discretion in basing its refusal to appoint a referee on the risk of inconsistent rulings and 

considerations of judicial economy.”8 (Id. at p. 545.) 

In their reply, defendants argue the court operated under the misapprehension it 

lacked discretion to deny the reference motion. Defendants point to the court‟s 

comments at the hearing, claiming they demonstrate the court “erroneously believed it 

had no discretion to deny a reference and, therefore, disregarded the factors highlighted 

in Tarrant Bell.”9 Under well established rules of appellate review, we need not consider 

arguments raised for the first time in a reply brief. (Estate of Bonzi (2013) 216 

Cal.App.4th 1085, 1106, fn. 6.)

Assuming this argument is properly before us, we reject it on the merits. At the 

hearing on the motion, defense counsel argued: “this is another point that actually was 

 

8

 In Tarrant Bell, 120 current and former lessees and residents of a mobilehome 

park sued defendant park owners for, among other things, subjecting park residents to 

substandard living conditions. (Tarrant Bell, supra, 51 Cal.4th at p. 540.) The lease 

agreements between the park owners and about 100 plaintiffs contained a judicial 

reference provision and the park owners moved to appoint a referee to hear the dispute 

under section 638. (Id. at pp. 540-541.) The trial court denied the motion, noting the 

“possibility of „inconsistent judgments‟ were it to order reference only as to [plaintiffs] 

who had signed a predispute reference agreement” and concluding that “„the purposes of 

section 638 would not be promoted by a general Reference of some claims and not 

others.‟” (Id. at p. 541.) 

As the trial court explained, “„[o]rdering two groups of [plaintiffs] to try their 

cases in separate but parallel proceedings would not reduce the burdens on this court or 

the parties, result in any cost savings, streamline the proceedings, or achieve efficiencies 

of any kind. The parties would be required to conduct the same discovery, litigate[,] and 

ultimately try the same issues in separate but parallel forums. A general reference would 

thus result in a duplication of effort, increased costs, and potentially, delays in resolution. 

Moreover, it would not reduce any burden on this Court, which would almost certainly 

have to hear, and decide, all of the same issues.‟” (Tarrant Bell, supra, 51 Cal.4th at 

p.541, quoting Greenbriar, supra, 117 Cal.App.4th 337.) 

9

 A statement of decision or oral statement of the court‟s analysis would have 

been helpful here, where the two-sentence tentative ruling addressed only 

unconscionability and not the remaining arguments raised in opposition to the motion. 

Critically, as we discuss infra, such a statement of decision or oral explanation of the 

court‟s analysis would have clarified that the court understood the scope of its discretion.
22

not addressed in the tentative ruling that we‟ve put in our opposition papers. [¶] The 

consequences of [ ] granting a motion for judicial referee is going to cut this case in half. 

So the personal guarantee claims are going to be heard by a judicial referee, and the 

cross-complaints for indemnity and affirmative relief are going to be heard in the regular 

court system. This is addressed . . . in Tarrant Bell saying [it‟s] improper; you should not 

have two separate parallel proceedings.” Counsel then listed a specific example 

illustrating how “[a]bsolutely dispositive factual issues are going to come up in” both the 

reference action and the court action. The court interrupted counsel and directed 

plaintiff‟s counsel to respond to defendants‟ argument that the language of the reference 

provision was insufficient to waive defendants‟ right to a jury trial. 

Later, defense counsel returned to her argument regarding Tarrant Bell, again 

noting the tentative ruling “doesn‟t address this” and the following colloquy occurred:

“[DEFENSE COUNSEL]: The consequences of a dual track action. Now we‟re 

going to have —

“THE COURT: We have that all the time.

“[DEFENSE COUNSEL]: Can I work through this for a minute?

“THE COURT: I know exactly what you mean. Sure. It settles — that‟s often 

very helpful. This is going to settle, what, multi-million dollars issues?

“[PLAINTIFF‟S COUNSEL]: The balance of the claims are indemnity claims, 

Your Honor.

“[DEFENSE COUNSEL]: That‟s not true.

“THE COURT: I don‟t find that a drawback.

“[DEFENSE COUNSEL]: So we have this . . . finding of facts as to whether the 

transfer from UCB to Joe Cassidy was an invalid transfer under the judicial referee. If it 

comes back and says, yes, that was valid, do they get to use that as collateral estoppel in 

our other case where we‟ve not been deprived of the right to a jury trial as to that issue 

where we clearly have a right to a jury trial? Let me —

“THE COURT: Let‟s cross that bridge.

“[DEFENSE COUNSEL]: Let me give you an example.
23

“THE COURT: Why am I going to speculate about these things?

“[DEFENSE COUNSEL]: It‟s because that‟s why the . . . the California Supreme 

Court in Tarrant Bell refused to have dual tracks. They took a similar situation and said, 

no, we‟re not going to take some claims and send them off here—

“THE COURT: I don‟t see it as a detriment here. If anything, I see the other side 

of it that it might be a good idea.

“[DEFENSE COUNSEL]: I guess that‟s contrary to what the Tarrant Bell court 

thought when faced with the same identical circumstances. [¶] . . . Your Honor, if you 

don‟t want the hypotheticals —

“THE COURT: I really feel this is a statutory issue. I really do. I think you‟ve 

got a good idea, but that agreement is so solid. It is. As Daniel Webster would say, 

copper bottomed. Rock ribbed and copper bottomed. That‟s the way I see it.” 

On the one hand, there may be a plausible argument the court was mistaken in its 

belief that whether to grant plaintiff‟s motion was solely a “statutory issue.” Under 

Tarrant Bell, it is clear a trial court has discretion to refuse to enforce a predispute 

agreement for the reasons discussed above. (Tarrant Bell, supra, 51 Cal.4th at pp. 542, 

545.) Following defendants‟ argument to its logical conclusion, the court‟s purported 

mistaken belief about the scope of its discretion and its “„failure to exercise discretion 

[was] itself an abuse of discretion.‟” (Doan v. State Farm General Ins. Co. (2011) 195 

Cal.App.4th 1082, 1099, quoting In re Marriage of Gray (2007) 155 Cal.App.4th 504, 

515; see also Olsen v. Harbison (2005) 134 Cal.App.4th 278, 285 [abuse of discretion 

may be established by showing the court “erred in acting on a mistaken view about the 

scope of its discretion”].)

On the other hand, one could interpret the court‟s comments as a rejection of 

defendants‟ arguments regarding Tarrant Bell. Defense counsel repeatedly argued 

having dual tracks was a basis to deny the motion under Tarrant Bell. In response, the 

court stated, “I don‟t see that as a detriment here. If anything, I see the other side of it 

that might be a good idea.” When defense counsel began to discuss the “consequences of 

a dual track action,” the court responded, “[w]e have that all the time” and said, “I know 
24

exactly what you mean. Sure. It settles — that‟s often very helpful.” The court then 

stated the presence of indemnity claims in the court litigation “was not a drawback.” 

These comments suggest the court considered — and rejected — defense counsel‟s 

Tarrant Bell arguments. On this record, we cannot conclude the court failed to exercise 

its discretion. 

There may have been sound reasons to deny the reference motion. Requiring 

defendants to defend plaintiff‟s complaint before the referee but litigate their crosscomplaints in court could force the parties “to conduct the same discovery, litigate[,] and 

ultimately try the same issues in separate but parallel forums” (Tarrant Bell, supra, 51 

Cal.4th at p. 541) because the defenses asserted by defendants in response to the 

complaint are based on identical facts as their cross-claims against Cassidy and Centrix. 

In addition, requiring reference could create a risk of inconsistent rulings because 

Cassidy is not subject to the reference order, raising issues of collateral estoppel as the 

reference and trial court actions proceed at different times. That another court might 

reasonably have reached a different result on this issue, however, does not demonstrate 

an abuse of discretion. An abuse of discretion may be found only if “„no judge could 

have reasonably reached the challenged result. [Citation.] “[A]s long as there exists „a 

reasonable or even fairly debatable justification, under the law, for the action taken, such 

action will not be . . . set aside.‟”‟ [Citation.]” (Guimei v. General Electric Co. (2009) 

172 Cal.App.4th 689, 696.) We cannot conclude there is an abuse of discretion here.

DISPOSITION

The petition for writ of mandate/prohibition is denied. The previously issued stay 

shall dissolve upon issuance of the remittitur. (Cal. Rules of Court, rules 8.490(c), 

8.272.) Plaintiff shall recover its costs. (Cal. Rules of Court, rule 8.493(a)(1)(A).)
25

_________________________

Jones, P.J.

We concur:

_________________________

Simons, J.

_________________________

Bruiniers, J.

A137996
26

Superior Court of the City and County of San Francisco, No. CGC09494591, Ernest H. 

Goldsmith, Judge

Catherine M. Leon, Futterman Dupree Dodd Croley Maier LLP, Martin H. Dodd, 

Christopher Flood, in Pro. Per. for Petitioners.

No appearance for Respondent

Steyer Lowenthal Boodrookas Alvarez & Smith LLP, Jeffrey H. Lowenthal and Edward 

Egan Smith, Law Offices of Gary A. Angel, Gary A. Angel and Frear Stephen Schmid 

for Real Party in Interest.

A137996